Four States and D.C. Take Action On Transgender Inclusive Health Insurance

This year has seen some definitive advances in how certain states address the issue of insurance discrimination against transgender people. California, Colorado, Oregon, and Vermont, as well as the District of Columbia, have issued bulletins that clarify their state laws to prohibit discrimination against transgender people for health services deemed medically necessary. Some states, such as California, also outline an appeals process for individuals whose claims are denied. Here is the bulletin California recently issued:

[California law] prohibits health plans from discriminating against individuals because of the individua’s gender, including gender identity or gender expression … If a health plan denies an individual’s request for services on the basis that the services are not medically necessary or that the services do not meet the health plan’s utilization management criteria, the health plan’s decision is subject to review through the Department’s Independent Medical Review (IMR) process … The Department directs health plans to revise all current health plan documents to remove benefit and coverage exclusions and limitations related to gender transition services.

At present, the majority of private insurance plans include coverage exclusions specifically aimed at denying transgender people the ability to access treatment or procedures associated with transitioning, often referred to as sexual reassignment. In addition, insurance plans often exclude coverage of health care services for transgender individuals that would otherwise have been covered, had the person in question not been transgender. These services can include behavioral health, medical, and surgical procedures. Often, the exclusion is justified on the basis that the treatment is not medically necessary, but rather a cosmetic procedure, and the transgender person’s claim is consequently denied when it may otherwise have been covered for treatment not related to gender identity.

Coverage may also be denied in instances where a person’s gender marker on an insurance card doesn’t seem to match up with the treatment being sought. For example, an insurance plan may choose not to cover a yearly gynecological exam for someone who has legally changed their gender to male. The same goes for gender-specific preventative or treatment in instances of breast, ovarian, cervical, or prostate cancer.

In addition, transgender inclusive healthcare is sometimes also provided more exclusively on a city-by-city basis. This was the case in San Francisco when its innovative healthcare program for city residents removed the exclusion for transgender care last year. Most recently, the city of Philadelphia passed an LGBT-inclusive healthcare bill that provides incentives to businesses who offer or expand this type of insurance coverage for their employees. The bill includes two credits, one of which focuses exclusively on offering coverage to employees for transgender care.

There has been concern by transgender advocates that insurance companies in states where bulletins have recently been issued may still continue to deny medical procedures, requiring individuals to endure a potentially lengthy appeals process in order to have their claims approved. As more and more states and cities clarify their laws with respect to transgender care, the chances of this happening will likely be reduced. Approaches to transgender healthcare and insurance coverage have certainly improved over the past few years, but there’s still a long road ahead to ensuring all 50 states provide adequate non-discrimination coverage to trans and gender variant residents.

Illinois law dean and professor Vikram David Amar comments on the Supreme Court’s recent decision in Franchise Tax Board v. Hyatt and what it says about stare decisis, the notion that prior Court rulings are entitled to respect in the Court today.